English v. Rosenkrantz , 150 Ga. 817 ( 1921 )

Beck, P. J.

This court can not undertake to answer the questions stated above. After giving them careful consideration we are satisfied that the questions are not of the character which the Court of Appeals is authorized to certify to this court. In the case of Lynch v. Southern Express Co., 146 Ga. 68 (90 S. E. 527), it was said: “With a view of preserving uniformity of decision, the constitution provides for the certifying of constitutional questions to the Supreme Court, and further provides that ‘ The Court of Appeals may at any time certify to the Supreme Court any other question of law concerning which it desires the instruction of the Supreme Court for proper decision; and thereupon the Supreme Court shall give its instruction on the question certified to it, which shall be binding on the Court of Appeals in such ease. The manner of certifying questions to the Supreme Court by the Court of appeals, and the subsequent proceedings in regard to the same in the Supreme Court, shall be as the Supreme Court shall by its rules prescribe, until otherwise provided by law.’ Constitution of Georgia, art. 6, sec. 2, par. 9 (Civil Code of 1910, § 6506). Two features stand prominent in this constitutional provision: one is that the question certified is to be one of law; and the other is that the purpose of the certification is to settle the question of law for application by the Court of Appeals in a ‘proper decision’ of the case by them. There can be no doubt that the words, ‘question of law,’ as used in the constitution, considered abstractly or in connection with the context, were not intended to embrace questions of fact, or mixed questions of law and fact; the manifest object being to submit to the Supreme Court a definite question of law.” And the decision made in the Lynch case was held by this court in the case of L. & N. R. Co. v. Hood, 149 Ga. 829 (102 S. E. 521), not to have been affected by the amendment to the constitution adopted in 1916, wherein the jurisdiction of the Supreme Court and of the Court of Appeals is defined. The questions propounded in this case by the Court of Appeals are entirely too general and not sufficiently specific. The first in the series of questions is not as broad in its scope, it is true, as the other questions which follow; but in order to answer the questions submitted, it would be necessary for this court to go into the record .to compare the rulings made by the court below in striking portions of the petition attacked by demurrer, and, after having determined that question, then to formulate, the specific question of law involved and determine that. Similar observations might be made in regard to question No. 2, except that it does not require 'the ascertainment of what part of the petition was left after a demurrer was sustained. Other questions embodied in the series submitted are still more general and lacking in definiteness and are still further removed from being specific questions of law. The Court of Appeals desires that we should determine whether a certain contract, referred to as an exhibit in the 'record, is contrary 'to public policy and void, and then whether it is "illegal and void for any reason, or is it legal and binding upon all the parties thereto?” It seems to us clear that such questions aré not specific questions of law. If the Court of Appeals can submit the questions here propounded, then in any case that went off in the trial court upon demurrer and which was carried by writ of error to the Court of Appeals it would be competent for'the Court of Appeals to submit to us the general question,-did the court'below err in sustaining the demurrer to the petition? And if that could be done, then in a case pending in the Court of Appeals wherein was involved the judgment of the trial court in overruling a motion for a new trial it would be competent for the Court of Appeals to submit the question to us as to'whether the court below erred in refusing á new trial. We are of the opinion that such a practice is not in accordance with the law authorizing the Court of Appeals to submit to this court abstract and specific questions of law.

All the Justices concur.